Updated on 07/05/2020
Around the world, lawmakers have reviewed and relaxed laws around how people write and update Wills during lockdown or social distancing measures. In England and Wales, you currently still need two independent witnesses when you sign a Will, making things difficult when Wills are a concern for many.
A person who writes the Will is called the testator. Unless the testator is leaving their entire estate to a charity, it’s unlikely that anyone living with them will be independent enough to act as a witness. Face-to-face signing could also put people at risk of catching and spreading coronavirus, especially if the people involved are vulnerable.
Naomi Neville, a Senior Associate in our Tax, Trust & Estate team, has prepared this advice for anyone concerned about their Will in the current situation. She has looked at how people can sign Wills during the coronavirus crisis, how other countries have responded, and measures that the UK government could take.
If you or a loved one needs help or advice with Will writing, contact our team today on 0370 1500 100.
How are people signing Wills at the moment?
Many people are meeting neighbours outside of their houses, all standing more than two metres apart, and bringing their own pens to sign the document.
Vulnerable people who are shielding and don’t want to expose themselves to a meeting outside can execute a Will while witnesses watch them through a window. They then pass the Will outside for the witnesses to sign while they watch, limiting their exposure to other people.
There are bigger problems for vulnerable people who are shielding who can’t easily or safely access a window. For people who are ill in hospital it’s even more difficult to find one, let alone two witnesses.
People who can’t make a valid Will at this time may want to write down their wishes and hopes for their estate, even if they can’t get it witnessed at all. This won’t produce a legally binding Will, but may give some guidance to loved ones seeking to ‘do the right thing’ when sorting out the estate.
What are other countries doing?
Australian law already allows for courts to use their discretion if a Will doesn’t meet all the normal requirements to be validly executed.
UK courts can’t do this at the moment. This doesn’t give the testator the peace of mind of knowing with certainty that the court will see their Will as valid.
Despite having this existing flexibility in Australia, Queensland legislators removed the need for the physical presence of witnesses to Wills on the 22 April 2020. This will allow for people to witness the testator signing a Will by video conference. This is only allowed if:
- A solicitor drafted the Will
- A solicitor is one of the witnesses
- A solicitor is supervising the execution of the Will.
You can also only do this if:
“The reason why the testator was unable to execute the will in the physical presence of two witnesses was because of either government enforced or recommended, or self-imposed, isolation or quarantine arising from the COVID19 pandemic.”
Jersey is also introducing legislation to allow witnessing by one or both witnesses by video. Their draft regulations include similar safeguards to Queensland’s. Jersey’s legislation requires witnesses to give a written statement that they followed the correct regulations within 14 days of the signing. It’s also proposed that legal professionals will get guidance for helping their clients in complying with the regulations.
France and Germany
Testators in other countries whose legal systems are not based on English common law already have the ability to make Wills without the presence of witnesses.
In France and Germany, it’s possible to make a holographic Will. This is a Will which is handwritten by the testator (not typed) and then signed personally by the testator with the signature following the text. This process doesn’t require witnesses at all or the involvement of a legal professional (while this is of course still recommended).
Are there reasons not to make Will execution easier at the moment?
In normal circumstances, there are good reasons to make sure that witnesses are physically present when signing a Will. This ensures that:
- The person who wrote the Will is the one signing it
- Their signature isn’t forged
- The testator hasn’t been coerced into signing the Will
- The testator has the mental capacity to understand what they’re signing.
In normal times, the benefits of these rules far outweigh any potential practical difficulties.
So the key question is whether the COVID-19 pandemic has shifted the balance. Do the potential health risks involved in the witnessing process now outweigh the need for safeguards to protect against potential fraud?
What is the government’s response?
We understand that our government ministers are considering several options, including giving the court more flexibility to decide what constitutes a valid Will. They’re looking at if a European style holographic Will could be valid and also deciding if Wills can be signed electronically rather than by hand. The government hasn’t made any decisions yet.
Many legal professionals are keen to see the formal rules for executing Wills relaxed. However, we do have concerns about what could happen if the rules are relaxed, particularly for the elderly and vulnerable.
Wills ‘without any formalities’ at all seem to me to push the balance too far, and provide no safeguards at all. A holographic Will could be useful for those in hospital who have no access to potential witnesses. However, hospital patients are likely to be the most ill and may not have the physical strength to handwrite a whole Will.
The best way forward would be to allow the courts more flexibility but with extra safeguards in place like in Queensland and Jersey. If the courts can use their discretion to decide if a Will is valid and witnessing is allowed to take place on video calls, this could be a good option. This will help people write Wills more efficiently but also protect people, especially vulnerable people, against fraud.
Until any change is introduced, we’ll continue to advise clients to do all they can to stick to the required formalities, while not taking unnecessary risks with their health.
Call our Wills, Trusts and Estates team on 0370 1500 100 if you or a loved one needs help with your Will or estate.